WRIGHT V. ELLISON, 68 U. S. 16 (1863)

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U.S. Supreme Court

Wright v. Ellison, 68 U.S. 1 Wall. 16 16 (1863)

Wright v. Ellison

68 U.S. (1 Wall.) 16


1. To constitute an equitable lien on a fund, there must be some distinct appropriation of the fund by the debtor. It is not enough that the fund may have been created through the efforts and outlays of the party claiming the lien.

2. A power of attorney drawn up in Spanish South America and by Portuguese agents in which throughout there is verbiage and exaggerated expression will be held to authorize no more than its primary and apparent purpose. Hence, a power to prosecute a claim in the Brazilian courts will not be held to give power to prosecute one before a Commissioner of the United States at Washington, notwithstanding that the first named power is given with great superfluity, generality, and strength of language.

In 1827, the American brig Caspian was illegally captured by the naval forces of Brazil and condemned in the prize courts of that country. There being nothing else to be done in the circumstances, her master, one Goodrich, instituted legal proceedings to recover the brig, and gave to Zimmerman, Frazier & Co., an American firm of the country, a power of attorney with right of substitution, to go on with matters. The power was essentially in these words:

"I authorize &c., in my name and representing me, to appear in and prosecute the cause I am this day prosecuting before the

Page 68 U. S. 17

tribunal of justice &c., in which this vessel is interested; said vessel has been detained by force of the blockade of Buenos Ayres, and that they make petitions, request, and protests, here and before all tribunals, superior and inferior, before whom it is customary to appeal; that they present all the documents favorable to my rights; that they except to and decline jurisdiction; that they give and refuse terms; that they submit written evidence and proof; that they retort and contradict everything unfavorable; that they challenge jurisdiction; that they express the causes of accusation if it be necessary so to do; that they take cognizance of all decrees and interlocutory as well as final sentences; that they admit the favorable and appeal from the adverse; that they prosecute the appeal before his Imperial Majesty in the superior tribunals of war and justice, that in right they can and ought to do; that they insinuate where and against whom they may deem advisable, doing in effect everything requisite and necessary that I, being present, would or could do; that they make transactions and obligations, name arbitrators and mediators, demanding damages or adjusting them amicably with the opposite parties, receiving in my name the said brig Caspian and her cargo; that they give all receipts right and proper to be given in faith of delivery and acquittance; and after the restitution of said vessel they may name, in my absence, any other captain and crew to navigate her if they deem it advisable, and if not, they may sell her per account of her legitimate owners, and they may receive amount of said sale. And as to the necessary power referred to, with all incidental and resulting powers, I give it to and confer it upon my aforesaid attorney, with free, frank, and general administration without limit, in order that there be no clause or special expression which would destroy the effect of it, because I gave them full power to substitute another, to revoke the appointed one's authority, and to name again substitutes, all of whom I exonerate from costs."

Under the power of substitution thus given to them, Zimmerman, Frazier & Co. substituted in their place Mr. Wright the consul of the United States, and a merchant of standing at Rio, whose official influence, it was apparently supposed, might be more potential than their own private efforts. Wright prosecuted the case diligently through the chanrobles.com-red

Page 68 U. S. 18

Brazilian courts, but without success. He afterwards came to the United States and urged our government to demand indemnity for this as for other wrongs of a like kind. He spent money, removed difficulties, advanced proof, and furnished information. The result of his or of other efforts was that our government finally made a demand for indemnity, and obtained it in this case, as in many others, under a treaty subsequently made. A commissioner was appointed to hear claims and decide them. But it was probable that, except for Wright's knowledge, effort and outlay, this result would not have been had, and neither this claim nor any other been asserted by our government as they all were.

After the labor of Wright had been undergone by him, and when the money was open for claim, one Ellison, an executor of a part owner, applied to the commissioner, proved his case, and received his share of the indemnity. Wright now instituted, in the court below -- the Circuit Court for the District of Columbia -- this proceeding, a bill in equity, against this same Ellison and others interested, to have a commission out of this fund. The bill set forth Wright's long and effective services, his large outlays, and insisted that, "by the general maritime law and law of the place where the contract was made," he was entitled to compensation, and "that such compensation should be retained and received by him out of the fruits of his said labors, services and expenses," and it set forth further,

"that as well by agreements as by reason of the premises, and by force of the maritime law and the principles of equity, and the law and established usage of the place of said contract, he had"

"a lien upon the fruits and proceeds of the claim, in whatever form of proceeding the same was realized, through or by reason of his labors, advances, or services performed, advanced and rendered."

It did not appear that the owners of the vessel had, in form, ever ratified what Wright did; but the evidence apparently was that they were cognizant, to a greater or less degree, of what he was doing, though he himself was the promoter of what was done everywhere. chanrobles.com-red

Page 68 U. S. 19

The chief question now, therefore, was whether the complainant Wright had an equitable lien upon the fund? and a preliminary question, whether the power of attorney authorized him to do anything more than prosecute the case effectively through the Brazilian courts, and dispose of the vessel afterwards, if he should prosecute it successfully? chanrobles.com-red

Page 68 U. S. 21


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